Last Updated: 12/17/2018
1. STATEMENT OF SERVICES
a. Purpose and authorization
You intend to engage Silverleaf to provide support, consulting, implementation, and maintenance services for your computer hardware, software, and data systems (“IT Systems”). You grant us authorization and permissions to physically and electronically access your IT Systems. If you are using our services on behalf of an organization, you must be an agent of the organization that is authorized to bind the organization to these Terms.
b. Service Descriptions
The services to be delivered by Silverleaf (the “Services”) and the fees for those Services are identified in your Service Order. Those Services and the specific terms applicable to them are described in one or more of the Service Descriptions. Unless otherwise agreed in writing, the services we will deliver to you are limited to those Services specifically identified in the Service Order and described in the Service Descriptions. In the event of any conflict between the terms of a Service Description and these Terms of Service, the terms in the Service Description control.
c. Service Fees, Payment Terms
Fees for Services are set forth in the Service Order. Upon your request or as we otherwise may agree, we will deliver to you an invoice identifying all charges owed to us. You shall pay a late charge of ten percent (10%) per month or the maximum lawful rate, whichever is less, for all such amounts not paid within fifteen (15) days following the billing date specified in the Service Order (the “Payment Deadline”).
If you dispute in good faith all or any portion of the amount owed to us, or if you otherwise require any adjustment to an invoiced amount, you must notify us in writing, prior to the Payment Deadline, of the nature and basis of the dispute and/or adjustment. If we are unable to resolve the dispute prior to the Payment Deadline, you nevertheless shall pay the entire invoiced amount by the Payment Deadline. If we ultimately determine that such amount should not have been paid, Silverleaf shall apply a credit equal to such amount on against any Service Fees owed for the following month.
2. PRIVACY, CONFIDENTIALITY, AND NON-DISCLOSURE
a. Privacy, account information
b. Confidential Information, non-disclosure
During the course of performance under this agreement, either party may be exposed to or may acquire the other’s proprietary or confidential information. Each of us shall hold all such “Confidential Information” in strict confidence and shall not disclose any such information to any third party. Confidential Information includes but is not limited to: (i) any technical information, design, process, procedure, formula, or improvement, as well as any formulae, specifications, designs, business or work processes and procedures, instructions, and other data relating to the Services; and (ii) any business plans and financial information, regardless of whether such information would be protected under the common law.
4. HARDWARE AND EQUIPMENT
“Equipment” means any computer, networking, racking, or associated hardware (if any) that we install on your premises to facilitate the delivery of Services. We retain sole discretion to determine the appropriate Equipment and associated software and/or technology, if any, to be used at your location. We also retain sole discretion to determine the necessity of maintenance, repairs and/or improvement of the Equipment.
Except as otherwise may be specified in an applicable Service Description, Silverleaf makes no independent representations or warranties with respect to the Equipment. Any third-party warranties are your exclusive remedies with respect to such Equipment. In the event of an Equipment malfunction, we will take commercially reasonable steps to ensure that you receive the benefit of any manufacturer warranties applicable to the Equipment.
You shall take reasonable care of the Equipment and shall not damage it, tamper with it, move or remove it, attempt to repair it, or attempt to install any software on it. You are responsible for providing the necessary power, network connection and appropriate environment to support the Equipment.
3. SILVERLEAF-SUPPLIED SOFTWARE
“Software” means all and any software installed on the Equipment or provided by Silverleaf for installation on your computer Equipment to facilitate the delivery of the Services. This agreement does not transfer any right, title, or interest in the Software to you. Your use of the Software is subject to all applicable terms of any end-user license agreement pertaining to the Software, a copy of which will be made available to you upon request.
You shall not, and shall not permit any third party, to: a) distribute or allow others to distribute copies of the Software or any part thereof to any third party, b) tamper with, remove, reproduce, modify or copy the Software or any part thereof, c) provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or d) reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software source code or underlying proprietary information except as may be permitted by law.
5. SILVERLEAF REPRESENTATIONS
a. Service Warranty
We warrant that the Services will be performed in a professional and workmanlike manner and as described in an applicable Service Description.
b. DISCLAIMER OF WARRANTY
EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, SILVERLEAF DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, SILVERLEAF DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE TEMPORARY LOSS OF SERVICE AVAILABILITY.
6. LIMITATION OF LIABILITY
EXCEPT AS MAY BE DESCRIBED IN AN APPLICABLE SERVICE DESCRIPTION, SILVERLEAF’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CLIENT AND WILL NOT EXCEED THE GREATER OF (1) THE PROCEEDS OF ANY PROFESSIONAL LIABILTIY INSURANCE AVAILABLE TO SILVERLEAF UNDER ITS APPLICABLE INSURANCE POLICIES, TOGETHER WITH ANY SELF-INSURED RETENTION AMOUNTS IN CONNECTION WITH THOSE POLICIES, UP TO A MAXIMUM OF $1,000,000.00 IN THE AGGREGATE, OR (2) THE SUM OF ALL AMOUNTS PAID BY CLIENT TO SILVERLEAF UNDER THIS AGREEMENT AND ALL SERVICE DESCRIPTIONS DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF ANY SUCH CLAIM. IN THE EVENT OF AN INSURANCE COVERAGE DISPUTE, SILVERLEAF IS NOT REQUIRED TO DISPUTE THE COVERAGE DETERMINATION AND IS NOT REQUIRED TO FILE A DECLARATORY JUDGMENT ACTION.
IN NO EVENT IS EITHER PARTY TO BE HELD LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR CLAIMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA, AND LOSS FROM INTERRUPTION OF BUSINESS, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE.
a. Arbitration Procedures
Each of us shall attempt to settle amicably by mutual discussions any disputes, differences, or claims related to this agreement within sixty (60) days of the date any such dispute arises. Failing such amicable settlement, any such dispute, including claim related to the existence, validity, interpretation, performance, termination or breach of this agreement, is to be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English. The Arbitration Tribunal will not have the authority to award punitive damages to either party. Each of us will bear our own expenses, but we shall share equally the expenses of the Arbitration Tribunal and the AAA. Any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Los Angeles, California, or at another location upon which we may agree. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for your failure to pay for Services may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.
b. Period for Bringing Claim
No claims to be resolved may be made more than six (6) months after the date by which the fault or failure should reasonably have been discovered; failure to make such a claim within the six (6) month period shall forever bar the claim.
c. Governing Law
This agreement is to be governed by and construed in accordance with the laws of the State of California. Jurisdiction and venue for any action arising under this agreement is exclusively in the state or federal courts located in Los Angeles County, California. The parties waive any other choice of venue. Any action arising under this agreement must be brought within six (6) months after its accrual.
Except as otherwise provided under this agreement, all notices, demands or requests to be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person, or sent via courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested, and addressed as set forth on the Service Order. The address to which such notices, demands, requests, elections or other communications are to be given by either party may be changed by written notice given by such party to the other party pursuant to this Section.
e. Force Majeure
We will not be liable for any failure of performance of the Services due to causes beyond our reasonable control, including, but not limited to, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorism, riots, strikes, Acts of God, or any law, regulation, directive, or order of the United States government, or any other governmental agency having jurisdiction over Silverleaf or the Services provided hereunder.
Neither party may assign this agreement, in whole or in part, or any of its rights or obligations hereunder without the prior written consent of the other party. However, Silverleaf may assign or otherwise transfer its rights, interests and obligations under this agreement without your consent in the event of a change in control of 50% or more of the equity of Silverleaf, the sale of substantially all the assets of Silverleaf, or the restructuring or reorganization of Silverleaf or its affiliate entities. In addition, unless otherwise agreed, we may contract with third parties to deliver some or all of the Silverleaf, and no such third-party contract is to be interpreted as an assignment of this agreement.
Our respective duties and obligations with respect to proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of this agreement.
We may, from time to time, at our sole discretion, and for any reason, amend these Terms of Service and any Service Descriptions. We will give you no less than thirty (30) days’ notice of any such change. Following your receipt of that notice, if any such change would result in a material diminishment of the value you are receiving under this agreement, you may terminate this agreement without incurring additional charges or penalties, if any, that you ordinarily would incur as a result of such termination. If you do not terminate this agreement within the notice period, then those changes will become effective on the date specified in our notice. Otherwise, this agreement may be modified or amended only by a writing signed by both parties.
If any term or provision of this agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the parties’ intention underlying the invalid term or provision.
j. Entire Agreement
This agreement sets forth our entire understanding with respect to the subject matter hereof and is binding upon both parties, their successors, and their permitted assigns, in accordance with its terms. There are no understandings, representations or agreements other than those set forth herein. Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against either party.